YUGUDA v. ABDULLAHI (2022)

YUGUDA v. ABDULLAHI

(2022)LCN/16645(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, July 14, 2022

CA/YL/04S/2021

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ABDULLAHI YUGUDA APPELANT(S)

And

HAUWA’U ABDULLAHI RESPONDENT(S)

RATIO

WHETHER OR NOT THE DISSOLUTION OF MARRIAGE THROUGH THE PROCESS OF KHUL’I REQUIRES THE KADI TO COMPEL THE WIFE TO EXPLAIN HER REASIONS FOR REQUESTING SO

In the case of Wapanda v. Wapanda (2014) 2 SQLR (Pt. 111) 385 the Court held thus:
“From all the above instance, it is clear that the dissolution of marriage through the process of Khul’i does not require the Kadi to compel the wife to explain her reasons for so requesting. The prophet did not inquire into the reasons why the two wives of Sufyan wanted to free themselves from his marriage tie. The two caliphs did not require the complaints before them to give explanations. It is purely a matter of contentment. Once the wife is discontented with the marital life in relation to that husband to the extent that it appears to the Judge that harmonious co-existence between the spouses is no more feasible and they shall transgress the bounds of Allah then dissolution of the marriage by TALAQ simpliciter or through the process of Khul’u is the only answer. There may be cases in which a wife may not like to disclose her reasons for the Khul’u”.
See also Usman v. Usman (supra). The order made by the trial Court directing the respondent to return to the appellant’s house has no effect whatsoever on the Khul’i granted by the trial Court. After all the appellant accepted the Khul’i when he stated thus:
“Yes but she will pay me N2,100,000.00 one cow and one startime.” PER TALBA, J.CA.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Sharia Court of Appeal Yola, Adamawa State delivered on 20th June, 2019 in Suit No: ADS/SCA/CV/46/YL/2018 between Abdullahi Yuguda and Hauwa’u Abdullahi.

The respondent instituted an action against the appellant at Gurin Area Court and same was transferred to Jimeta Civil Area Court, (hereinafter referred to as the trial Court). The respondent/plaintiff claim is as follows:
1. That the plaintiff and the defendant are all reside at Yola Town Adamawa State.
2. That the plaintiff is the wife of the defendant.
3. That the complaint married with the defendant since five years ago.
4. That the complaint got misunderstanding with the defendant and the father of the complaint took her to the house of the defendant almost several times until she said she don’t love him and she said she will pay him (Sadaqi) that is the reason she filed a complaint before this Court to divorce her by khul.
5. Any order or order that the Court made in that circumstance. See page 2 of the record of appeal.

The proceedings of the trial Court which gave rise to the appeal before the Sharia Court of Appeal Yola (hereinafter referred to as the lower Court), is a reference point for the determination of this appeal and so it is important to set out a summary of the proceedings.

On 28/5/2018 the respondent/plaintiff claim was read and explained to the appellant/defendant and he denied the claim. He said he will not divorce her until she told him the reason and he want his wife. The respondent told the Court that she does not like him, she will not stay with him because she does not like him and she will not give him his right as the husband and wife. She will give him his Sadaqi by Khul that is all.

The Court adjourned to 31/05/2018 to enable both parties to come with their marriage guardians. At the resumed sitting of the Court on 31/05/2018, Alhaji Aliyu the father of the respondent told the Court the efforts he made to resolve the issue between the couples but it failed. The respondent insisted she does not have any love for him. She even threaten to run away if he insisted that she must stay with him and she will kill herself. And there was a day the appellant sent her out from his house around 11:00pm in the night. He is afraid she may get into the hands of bad people. The appellant appreciated the efforts of Alhaji Aliyu being the father of his wife and her Waliyi. But all his effort to see that the marriage continue failed. He prayed the Court to assist him and give him back his wife.

Lamdo Katsina a brother to the appellant and his Waliyi told the Court that the respondent met him and told him that she has no love for her husband and he should tell him to divorce her. He told her to go back to her husband’s house and she refused. He later met her father who told him that his daughter said she is not interested to go back to her husband’s house. The solution is for him to tell his brother to divorce his wife hence she refused to stay in his house and they all tried to resolve their issue but it failed. And nothing they can do.

The Court adjourned to 4/06/2018 to enable the two Waliyi to sit with the respondent and the appellant to solve the issue and to report the outcome to the Court.

On the resumed sitting on 4/06/2018, the respondent and her Waliyi were in Court while the appellant and his Waliyi were not in Court, with no reason for their absence. Later on, the learned trial Judge received a letter from the Deputy Chief Registrar’s office directing him to suspend any action and he obeyed the instruction.

On 21/06/2018 the learned trial Judge received a letter that said he should continue with the case. He complied with the instruction and he summoned the appellant to appear in Court for the continuation of the cases. All parties were present in Court and the learned trial Judge ordered the respondent to go back to the house of the appellant. The respondent started crying in the Court hall.

On 25/06/2018, the appellant reported to the Court that his wife did not obey the Court order. She refused to go to his house. The learned trial Judge asked the respondent why she refused to obey the Court order. The respondent replied that she does not have any love for him that is the reason she did not go to his house. The learned trial Judge asked the appellant what he has to say. And the appellant said “let her pay me what I spend.” In response the respondent said she will pay him his Sadaqi, N20,000.00. The appellant replied that she will pay him N2,100,000.00, one cow and one startime. The respondent said she will give him his Sadaqi N20,000.00 and one cow.

In his judgment the learned trial Judge held thus:
“Court give judgment in favour of the complainant that she will give the defendant:
1. Instead of N20,000.00 Sadaqi she will give the defendant the sum of N80,000.00.
2. He made a gift of a cow and he claim it before the Court, Court give order that the complainant to give him his cow to have peace.
3. She has to give him his startime as he claims.
This order should be made within 14 days as from today 25/6/2018.”

Being aggrieved by the decision of the trial Court, the appellant appealed to the lower Court. The lower Court affirmed the decision of the trial Court. And upon being further aggrieved by the decision of the lower Court, the appellant appealed to this Court after obtaining an order for extension of time to appeal which was granted on the 10th November, 2020. The notice of appeal was filed on 17th November, 2020. It contains two grounds of appeal as stated hereunder without their particulars:
GROUND ONE
The learned Hon. Kadis erred in law when they held that the appeal lacks merit and thereby dismissed same even when the trial Court lacks jurisdiction to dissolve the marriage and the respondent has not proved the allegation against the appellant.
GROUND TWO
The learned Hon. Khadis erred in law when they held thus, “on the whole we hold that the decision of N80,000.00 being the compensation settled on Khuli is hereby affirmed.”

At the hearing of the appeal on the 9th of June, 2022 M. B. Umar of counsel adopted the appellant’s brief of argument filed on 16th February, 2021. He urge the Court to allow the appeal. H. B. Bakori of counsel, who appeared for the respondent informed the Court that they are not ready. He was briefed only yesterday 8/06/2022. There was no respondent’s brief filed even though the respondent was served with the appellant’s brief and the time allowed to file the respondent’s brief has since expired. And there is no any application for extension of time to file the respondent’s brief. Pursuant to Order 19 Rule 10(3) of the Court of Appeal Rules 2021, the appeal was heard on the appellant’s brief alone.

From the two grounds of appeal, the appellant raised two issues for determination thus:
“i. Whether the lower Court was right to have affirmed the decision of the trial Court dissolving the marriage between the appellant and the respondent even where the trial Court ordered the respondent to return to her matrimonial home as she failed to prove her case.
ii. Whether the lower Court was right to have affirmed the decision of the trial Court for the payment of compensation of N80,000.00 only by the respondent in favour of the appellant as opposed to the sum of N2,100,000.00 sought by the appellant at the trial Court.”

The appellant’s contention on issue one is that the trial Court made an order that the respondent should return to the appellant’s house and the respondent refused to comply with the order, but the Court went ahead to dissolve the marriage between the appellant and the respondent. Learned counsel submitted that it is trite law that the Court becomes functus officio when it makes a final order in a matter and therefore cannot review the order. The learned counsel relied on the case of Alabi v. Kareem (2015) 3 SQLR (Pt. IV) 756 ratio 3 AT 760.

The learned counsel submitted that the option available to the respondent at the trial Court is either she complies with the Court order or appeal the said order but same was not done. The order made by the trial Court is as a result of the failure of the respondent to prove her allegation against the appellant. The lower Court was not right to have affirmed the decision of the trial Court dissolving the marriage between the appellant and the respondent even where the trial Court made an order as a result of failure of the respondent to prove the allegation against the appellant.

To begin with, in the Holy Quran Chapter 30 Verse 21, Allah (SWT) stated that: “One of the signs of his Omnipotence, mercy and love to mankind is that he created men and women for the purpose of mutual companionship, love, peaceful coexistence, tranquility and procreation” “Nikkah” is the technical term for marriage. It is a contract between a man and a woman with their full consent and acceptance according to the Quran and Sunnah of the Prophet (SAW). The objective of marriage is for the couples to find tranquility with each other and achieve love and mercy between them. The Shari’a law according to the Quran and Sunnah guarantees a satisfying and happy family union based on affection, love, mercy, compassion, mutual trust and peaceful co-existence. In Quran Surah 2. Al-Baqarah verse 187 Allah said:
“They are Libas (i.e body-cover or screen) for you and you are Libas for them.”
Ibn Abbas Mujahid, Said bin Jubayr, Al-hassan, Qatadah, As-Suddi and Muqatil bin Hayyan said this Ayah means your wives are a resort for you and you for them. Ar-Rabi bin Anas said, “They are your cover and you are their cover”. The import of this Quranic verse and the Hadith is to show how intimate a wife is to her husband. But all these can only be realized where there is love and affection; which is reciprocal. Where the husband does not love his wife, the Shariah law permits him to divorce the wife in accordance with the Sunnah. It is referred to as “Talaq”, the legal process through which a marriage contract is terminated. Divorce though permitted by Shariah law it is the most hateful thing allowed by Allah, (SWT). Where it is the wife that does not love her husband, she is allowed to redeem herself from the marriage contract through the process of Khul’i. Khul’i is one of the ways in which dissolution of marriage talaq can take place. In the case of Usman v. Usman (2003) 11 NWLR (Pt. 830) 109 AT 127 this Court defined Khul’i as “the relinquishment of the (ownership of) marriage at the instance of and on payment of a consideration by the wife to the husband” see also Husaina v. Tsiriko (1991) 1 NWLR (Pt. 167) 356 AT 364. Through the process of Khul’i the wife will uncover herself as provided for in Surah 2 Baqrah verse 187.

In this instant case, the respondent has consistently told the trial Court that she does not love her husband. And in her claim before the trial Court she stated that she does not love her husband and she will pay him his sadaqi to divorce her by Khul’i. The respondent did not make any allegation against her husband which require proof as erroneously submitted by the appellant’s counsel, that the order directing the respondent to return to the appellant’s house was made by the trial Court as a result of failure of the respondent to prove allegation against the appellant. The appellant’s counsel did not mention what was the allegation which she failed to prove. The appellant’s counsel also erroneously submitted that the order made by the trial Court has not been complied with by the respondent but the Court went ahead and dissolved the marriage between the appellant and the respondent. It is trite law that the Court becomes functus officio when it makes a final order in a matter and therefore it cannot review the order. Learned counsel relied on the case of Alabi v. Kareem (supra).

The words “final order” is underlined for emphasis. The question to ask here is whether the order made by the trial Court that the respondent should return to the appellant’s house was a final order? It is crystal clear that it was not a final order. The case was still at the stage of trial and the trial Court was still exploring ways to resolve the marriage dispute. The appellant’s counsel is grossly misconceived as to the principles and procedure of sharia law. In the case of Wapanda v. Wapanda (2014) 2 SQLR (Pt. 111) 385 the Court held thus:
“From all the above instance, it is clear that the dissolution of marriage through the process of Khul’i does not require the Kadi to compel the wife to explain her reasons for so requesting. The prophet did not inquire into the reasons why the two wives of Sufyan wanted to free themselves from his marriage tie. The two caliphs did not require the complaints before them to give explanations. It is purely a matter of contentment. Once the wife is discontented with the marital life in relation to that husband to the extent that it appears to the Judge that harmonious co-existence between the spouses is no more feasible and they shall transgress the bounds of Allah then dissolution of the marriage by TALAQ simpliciter or through the process of Khul’u is the only answer. There may be cases in which a wife may not like to disclose her reasons for the Khul’u”.
See also Usman v. Usman (supra). The order made by the trial Court directing the respondent to return to the appellant’s house has no effect whatsoever on the Khul’i granted by the trial Court. After all the appellant accepted the Khul’i when he stated thus:
“Yes but she will pay me N2,100,000.00 one cow and one startime.”

Accordingly therefore issue one is resolved against the appellant.

Issue two is whether the lower Court was right to have affirmed the decision of the trial Court for the payment of compensation of N80,000.00 only by the respondent in favour of the appellant as opposed to the sum of N2,100,000.00 sought by the appellant at the trial Court. The appellant’s counsel submitted that the respondent at the trial Court sought for the dissolution of the marriage without any reason which is against Islamic injunction where the prophet (SAW) said in a book simplified Islamic Jurisprudence based on the Quran and Sunna volume 2 complied and translated by Mohammad M. Abdul-Fattah:
“If a woman ask her husband for divorce without (inflicted upon her) she will be forbidden from the fragrance of paradise”.

Learned counsel submitted that it was on that basis that the appellant sought for the sum of N2,100,000.00 to enable him marry again. He said Islam allows it especially when the respondent has not proved any harm inflicted on her by her husband. He cited Ibn Abi Zayd Al-qayrawani in his book The Risala Chapter 32 page 234 to buttress his submissions. Learned counsel submitted further that it is permissible under Shariah for compensation to be paid over and above what the wife collected during marriage. He cited Sayyidussabiq in his book Fighus-Sunna Vol 2 page 255 (Arabic version) where he said the majority of the jurist are unanimous on this position based on Q2:229.

I must mention straight away that Quran Surah 2 Al-Baqara verse 229 referred to by the learned counsel does not support his contention rather the opposite is the case. It states:
“2:229. The divorce is twice after that either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money) given by the husband to his wife at the time of marriage which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e. g to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-khul (divorce). These are the limits ordained by Allah so do not transgress them. And whoever transgresses the limits ordained by Allah then such are the Zalimun (wrong does).”
Ibn Abbas (RA) narrated that the wife of Thabit bin Qais came to the Prophet (SAW) and said “O Allah’s messenger! I do not blame Thabit for defects in his character or his religion, but I being a Muslim, dislike to behave in an Un-Islamic manner (If I remain with him)”. On that Allah’s Messenger (SAW) said (to her), “Will you give back the garden which your husband has given you (as mMahr) she said “yes”. Then the prophet (SAW) said to Thabit “O Thabit! Accept your garden and divorce her once”. Sahih Al-Bukhari 7/5273.
With the above hadith, the earlier hadith referred to by the appellant’s counsel that if a woman ask her husband for divorce without any harm inflicted upon her, she will be forbidden from the fragrance of paradise, becomes inapplicable to the instant case. As to what a husband is entitled to in a Khul’i the case ofJimoh v. Adunni (2013) 1 SQLR (Pt. 111) 66 at 69 ratio 4 Okunola JCA held thus:
“Once it is ascertained in a divorce matter that the wife really dislikes the husband so that she cannot live happily with him any longer as in the instant case, the Court shall then fix as compensation (that is Khul) anything that it considers proper and the husband shall have to accept that and divorce the wife. See A. R. Doi Basis of Sharia P. 288; Husaina v. Tsiriko (supra) P. 366 Paras E-F See also Bulumkutu v. Zangina (1997) 11 NWLR (Pt. 529) 526 P. 317, Salisu v. Lawal (1986) 2 NWLR (Pt. 23) 435 P. 442 was referred to with approval. See also Ramota Issa v. Issa Alab (1990) 1 SLRN 80 Pp. 90-91”.
It is settled law in plethora of judicial authorities that in a Khul divorce under the Maliki school of Islamic jurisprudence the wife is allowed to ransom herself by paying back to her husband the exact dowry paid to her or an amount less or more than that. But there is no law which states that the husband can claim an outrageous amount from the wife as Khuli so that he can remarry another wife. It is not the responsibility of the wife to provide the husband with the money to marry another wife in accordance with his whims and caprices. The Court has the power to decide on what is reasonable for the wife to pay the husband as compensation. The lower Court was right when it affirmed the decision of the trial Court for the payment of compensation of the sum of N80,000.00 by the respondent.

Islam expects every right thinking Muslim to be reasonable and responsible in all his actions towards fellow human beings. If it were his own sister, daughter or mother that is asked to pay a ridiculous amount in order to ransom herself, how could he feel? And if Islam had permitted the wife to ask for compensation for a divorce, how much could the wife ask for, having stayed with the husband for five years. And over this period of five years, she was cooking for the husband and doing all kinds of labour to maintain the house. Apart from the sexual pleasure that is derived by the husband from the wife day and night for five years. A Muslim should have a fear of Allah in whatever he does, knowing that one day he will be made to account for all his actions before Allah (SWT). A Muslim should have faith in the fact that it was Allah (SWT) who instill love in the heart of the wife before the marriage and after the marriage. And it is Allah (SWT) who takes away that love from the heart of the wife which led to the divorce. Then why think of punishing the wife for what is not of her own making. Some women as part of their destiny they marry more than one husband in their life time, while some, they marry only one husband till death. Consequently, issue two is resolved against the appellant. The appeal lacks merit and it is dismissed.

The judgment of Sharia Court of Appeal Yola, Adamawa State delivered on 20th June, 2019 in Suit No. ADS/SCA/CV/46/YL/2018 is hereby affirmed. Parties to bear their cost.

MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother A. M. TALBA JCA. I agree with the reasoning and conclusion that this appeal lacks merit and is hereby dismissed. I abide by all the consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I had the benefit of reading in draft, the lead judgment delivered by my learned brother, ABUBAKAR M. TALBA, JCA. I am in agreement with the reasoning and conclusions reached. The appeal is also dismissed by me and I abide by the consequential orders made therein.